State v. Freyer

• Decision Date: 08 April 1932
• Docket Number: 31041
• Citation: 48 S.W.2d 894,330 Mo. 62
• Parties: The State v. Leslie Freyer, Appellant
• Court: Missouri Supreme Court

48 S.W.2d 894

330 Mo. 62

The State v. Leslie Freyer, Appellant

No. 31041

Supreme Court of Missouri

April 8, 1932

Appeal from Warren Circuit Court; Hon. W. C. Hughes Judges.

Reversed and remanded.

E C. Kennen, Kenneth G. Kennen and Emil Roehrig for appellant.

(1) State relying entirely on circumstantial evidence circumstances must be consistent with each other and with hypothesis of defendant's guilt, and inconsistent with every other reasonable hypothesis, including that of innocence. Verdict based on mere suspicion cannot stand. 16 C. J. 1011; State v. Pritchett, 33 S.W.2d 794, 327 Mo. 1143; State v. Morney, 196 Mo. 50, 93 S.W. 1119. There was no proof of the corpus delicti, and without such proof a verdict of guilty cannot stand. State v. Cox, 264 Mo. 408; State v. Jones, 106 Mo. 312; State v. Dixon, 78 Mo. 438. (2) Search in the yard is searching the "Home" and to search the home without a search warrant was violative of the constitutional rights of this defendant. Sec. 11, Art. 2, Constitution of Missouri. The term "Home" in the Missouri Constitution is more comprehensive than "House" in the Federal Constitution. It includes the curtilage -- the yard, etc. 1 Bouvier's Law Dictionary, p. 741; McClurg v. Brenton, 123 Iowa 368, 98 N.W. 881; State v. McAnnally, 259 S.W. 1042; State v. Owen, 259 S.W. 100; State v. Lock, 259 S.W. 100. (3) If the sheriff was directing the search it was competent for the defendant to show this fact together with all other facts attending the entry of the defendant's home with bloodhounds and it was error to refuse to let the defendant show all the facts touching such entry at the hearing on his motion to suppress the evidence. This is too elementary to require citations of authorities. State v. Elliot, 45 Iowa 486; Gaines v. State, 99 Ga. 703, 26 S.E. 760. (4) The prosecuting attorney should not be permitted in his opening statement to get before the jury a detailed statement of testimony expected to be offered and not positively entitled to be introduced. 1 Thompson on Trials, secs. 263-264. (5) The defendant had a clear right to have all the evidence relating to the action of the bloodhounds in this particular case detailed before the court in the absence of the jury, it being the court's duty to first pass upon the competency thereof as a matter of law before submitting the same to the jury. It is also the province of the court to pass on certain facts. This character of evidence is as distrustful as a "dying declaration" or a "confession." Thayer's Preliminary Treatise on Evidence, Chap. 5, pp. 183-262; 22 C. J. 192; 3 Cyc. of Evidence, 173. Refusal to receive such evidence is error. State v. Johnson, 118 Mo. 491, 24 S.W. 229; State v. Rasco, 239 Mo. 535, 144 S.W. 449; 1 Thompson on Trials, secs. 318, 321, 322; State v. Nagle, 32 S.W.2d 596; State v. Steely, 33 S.W.2d 938. (6) Before the testimony relating to the action of the bloodhounds was admissible it should have been clearly shown that they were laid on the trail where the circumstances clearly showed the culprit had been. 2 Elliott on Evidence, sec. 1253; Richardson v. State, 145 Ala. 46; 8 A. & E. Ann. Cases, 108; State v. Norman, 153 N.C. 591, 68 S.E. 917. There is no evidence to show that the defendant had ever been in the vicinity of the alleged arson. State v. Pritchett, 39 S.W.2d 794, 327 Mo. 1143; State v. Matticker, 22 S.W.2d 647; State v. Nagle, supra; State v. Murphy, 25 S.W.2d 79. (7) Conduct of the defendant occurring six (6) years before the alleged crime are too remote to prove motive and utterly irrelevant. State v. Elkins, 63 Mo. 159; State v. Moberly, 121 Mo. 604, 26 S.W. 364. (8) There was such substantial evidence of the good character of the defendant as required the giving of an instruction on good character, even if the instructions had not been requested. R. S. 1919, sec. 4025, R. S. 1929, sec. 3681; State v. Baird, 231 S.W. 625; State v. Lindsey, 7 S.W.2d 253. And this is true although the testimony tending to show good character is introduced by the State or furnished by the State's witnesses. State v. Birdstrup, 237 Mo. 273.

Stratton Shartel , Attorney-General and Don Purteet, Assistant Attorney-General, for respondent.

(1) The most serious and grave point presented by this record for review is the question of whether the evidence is sufficient to establish the corpus delicti of the crime charged, to-wit, arson in the fourth degree. The corpus delicti in the case at bar consists of the burned separator together with defendant's felonious burning of same. State v. Jones, 106 Mo. 312; State v. Cox, 264 Mo. 413; Ashby v. State, 139 S.W. 872, 124 Tenn. 684; State v. Brown, 88 S.E. 21, 103 S.C. 437; L. R. A. 1916 D, 1295. The corpus delicti in an arson case, must, of necessity, consist of two things, first, a criminal act; second, the defendant's agency in the production of the act. State v. Dickson, 78 Mo. 438; State v. Berkowitz, 29 S.W.2d 150. It is, however, the law of this State that the corpus delicti of any criminal charge may be established by circumstantial evidence. This is true of the crime of arson, no matter in what degree. State v. Jones, supra. In the case at bar, it is well established by direct as well as circumstantial evidence that the separator was destroyed by fire. The circumstances render it reasonably certain that the fire was not accidental, but was of incendiary origin, although this is a presumption rather than a conclusive fact. The only evidence in the record which would have the slightest tendency to connect defendant with the felonious setting of the fire is the circumstance of the trailing work of the bloodhounds. Even this evidence, when analyzed, does not tend to show that defendant feloniously set the fire. At its very best, it would tend only to show that defendant had been in the vicinity of and near the separator at some time, whether before or after the fire. Such testimony manifestly could not show that defendant feloniously set fire and burned the separator. Copley v. State, 281 S.W. 462, and authorities there cited. Bloodhound evidence, commonly so-called, standing alone, is insufficient to establish the corpus delicti in an arson case. 8 R. C. L. sec. 177, p. 185; Carter v. State (Miss.), 64 So. 215; 50 L. R. A. (N. S.) 112; State v. Adams, 85 Kan. 435; State v. Freeman, 146 N.C. 615, 60 S.E. 986; Pedigo v. Commonwealth, 42 L. R. A. 432; 82 Am. St. Rep. 566; Copley v. State, supra. Several jurisdictions hold that bloodhound evidence is so unreliable as to be incompetent and inadmissible for any purpose. The greater weight of authority throughout the country, together with Missouri, holds that under certain conditions bloodhound evidence is competent and admissible as a circumstance for the jury to consider in connecting defendant with the crime. All of these authorities, however, hold that the bloodhound evidence standing alone and uncorroborated is insufficient to support a conviction. State v. Steely, 33 S.W.2d 939; State v. Rasco, 239 Mo. 570; Pedigo v. Commonwealth, 42 L. R. A. 432; State v. Dickerson, 189 N.Y. 294. Many cases in accord are collected in notes 42 L. R. A. 432, 63 L. R. A. 789, 35 L. R. A. (N. S.) 870, L. R. A. 1917 E, 730, 3 Ann. Cas. 897, 10 Ann. Cas. 1127, Ann. Cas. 1912 D, 39, Ann Cas. 1915 A, 1193.

OPINION

Ellison, J.

The appellant was indicted for arson in Audrain County. On a trial of the cause in Warren County, on change of venue, he was convicted by a jury and his punishment assessed at two years' imprisonment in the penitentiary. The property destroyed was a threshing separator standing on premises about a mile from his home. It was found burning about midnight. The chief, if not the only, evidence connecting the appellant with the fire was obtained through the use of bloodhounds. His principal contention on this appeal is that the proof was insufficient to support a conviction, and that the trial court erred in refusing to give his requested peremptory instructions in the nature of demurrers to the evidence.

The separator belonged to George W. Smith who was engaged in the business of threshing grain in the vicinity of Laddonia, Missouri. He had moved the machine and a steam threshing engine to the farm of Albert Freyer, a nephew of the appellant, about four o'clock in the afternoon of Saturday, July 27, 1929, preparatory to doing some threshing there the following Monday morning. Apparently it was his first job of the season. That day at his own home he had steamed up and run above thirty bushels of oats through the separator to see if everything was in working order; and then pulled over to Mr. Freyer's. The outfit was run into a lot about 250 or 300 feet east of the barn and left standing, coupled. Smith dropped the damper of the engine, pumped in plenty of water, covered the separator with a tarpaulin, and departed for the day. The next morning, Sunday, about nine o'clock he returned, fixed a pile of kindling, cleaned the flues of the engine, and shook down the grates, raking the ashes to one side. He discovered no fire and the ground was practically bare so there was little chance of it's spreading even if there had been any. Albert Freyer, who lived on the farm, was around the engine close to five o'clock that afternoon and found everything in good shape.

About midnight that night Mr. Freyer was called on the party line telephone by a neighbor woman who informed him she could see something was on fire at his place. He went out and found the separator burning. The part on fire was the back half -- farthest from the engine. He rushed back into the house hurriedly dressed, and returned to the fire; but it had gained too much headway to be extinguished, so he did little except to remove the coal from a box carried between the engine...